By Hugh Fisher
hfisher@salisburypost.com
SALISBURY ó Jurors heard closing arguments from both sides in the trial of Robert Douglas Earnhardt on Thursday.
But the jury wonít begin to deliberate until Wednesday morning because of the Christmas holiday.
Earnhardt is being tried in the death of his stepfather, Billy Tommy Elmore.
Elmore was shot in the back of the head Sept. 17, 2009, at 165 Leisure Lane.
Elmore had shared that home with his estranged wife, Patty Kesler Earnhardt Elmore, but moved out of that house a week before he was killed.
Earnhardt is also charged with assault with a deadly weapon inflicting serious injury for allegedly shooting Tiffany Marie Barbee.
Earnhardtís attorney, Jay White, began his closing argument by thanking jurors for keeping their minds open.
ěWe understand there were some problems … but donít get the cart before the horse,î White said.
ěWarning shotî
The defense has maintained that Earnhardt acted in defense of Patty Elmore, his mother, asserting that Billy Elmore and Tiffany Barbee arrived at the home and began attacking her.
In a videotaped interview with investigators shown in court Dec. 15, Earnhardt claims Elmore and Barbee arrived and began assaulting Patty Elmore, at which point he fired a ěwarning shotî which accidentally struck Barbee.
In the video, Earnhardt tells investigators he did not fire at Elmore until he saw Elmore raise a weapon and aim at Patty Elmore.
ěThe whole story is that Doug did not intend to shoot Tiffany Barbee,î White said.
White argued that, although Elmore was a property owner, he had left the previous week, taking many possessions with him.
On that basis, he questioned Elmoreís and Barbeeís motive in returning to the house on Leisure Lane on the night of the shooting.
According to witness testimony, Elmore had returned to the house to feed his dog, and was carrying a bag of dog food at the time of the incident.
White also pointed jurors to what he characterized as a lack of detailed evidence on the part of the state.
In particular, he questioned why law enforcement officers did not take down the names of eyewitnesses at Tamarac Marina, where Barbee fled after being seriously wounded in the shooting.
White contended that this raises doubts about what might have happened to the weapon which Earnhardt alleged Elmore was carrying and which he claimed prompted him to fire.
White also pointed to testimony of the days leading up to the shooting as evidence of why Earnhardt felt he had reason to fear for his motherís safety.
He contended that Earnhardt had ěan honest and reasonable beliefî that his mother would be killed or wounded by Elmore.
ěWhat played out in Dougís mind was the weeks, the days and the years before of Billyís threats,î White said.
White said Earnhardt had tried to speak to Sheriff George Wilhelm about his concerns, but never heard from him.
He also told jurors that Earnhardt believed a 50-B domestic violence protective order requested on Sept. 16, 2009 was in place.
In fact, testimony showed that order was never served.
White claimed Earnhardt didnít know that.
He contended that Patty Elmore and Earnhardt had first asked Elmore and Barbee to leave the property because of the protective order.
White also claimed Earnhardt had been told a deputy sheriff would be stationed nearby.
White characterized Elmore as a man who had come back to the home he had left in order ěto exert his will on others.î
And he referred to testimony alleging that Elmore had thrown liquor into Patty Elmoreís face on a previous occasion, and that he had allegedly written curse words on the walls when he moved out of the house on Leisure Lane.
ě(Earnhardt) was not the aggressor,î White said. ě… (Elmore) is the one who came to the house after he moved out the week before.î
In conclusion, White said the shooting was not premeditated, and the fact Earnhardt was armed is not proof that he had planned to kill Elmore that night.
ěIt was quick, no doubt about it,î White said. ěBut how many seconds does it take for your mother to be killed?î
Cookís rebuttal
After the lunchtime recess, District Attorney Brandy Cook began her closing argument.
The focus of her argument: The physical evidence doesnít support Earnhardtís claim.
She began by questioning the claim that Billy Tommy Elmore attacked Patty Elmore.
ěThe question you need to ask yourself is, where in the world are her injuries?î Cook said.
She said that Earnhardtís claim that Patty Elmore was being severely beaten isnít corroborated by photos taken by investigators.
Cook also questioned the direction of the alleged ěwarning shotî and the missing gun Elmore was supposed to have been carrying.
ěPlease donít leave your common sense on the front steps of this courthouse when you walk in here,î Cook said.
She asked jurors to consider how Billy Tommy Elmore could hold a bag of dog food and conceal a firearm while hitting Patty Elmore.
ěLadies and gentlemen, that makes absolutely no sense,î Cook said. ěIt is absolutely ridiculous.î
She also said the physical evidence doesnít add up, especially the fact that investigators found Elmore to have been shot in the back of the head.
Cook questioned why Elmore would not have turned to face Earnhardt when the ěwarning shotî was fired.
She then attacked the claim that Elmoreís alleged gun was missing because Barbee took it with her when she left the scene.
Cook reminded jurors of the extent of Barbeeís injuries ó a shotgun blast to the hand, causing extensive bone and tissue damage and loss of blood.
And she pointed to a lack of blood trail and any other evidence that Barbee went toward Elmoreís body.
ěShe was in a hurry to get out of there before she lost her life, too.î
A subsequent search of the lake near Tamarac Marina, and of the roadsides along the route Barbee used to flee, found no trace of a firearm.
Cook went on to review witness testimony, arguing that the physical evidence did not support Earnhardtís version of events.
In particular, Cook said Patty Elmore had not testified to seeing a gun when her estranged husband arrived.
After finishing his instructions, Superior Court Judge Kevin Bridges dismissed the jury at 4:45 p.m. so they could choose a foreman.
He then told attorneys of his intent to recess until after the Christmas holidays.
The Rowan County Courthouse will be closed Monday and Tuesday.
After about 15 minutes, he recalled the jury and gave them the news, admonishing them not to deliberate or discuss the case.
The court will reconvene Wednesday at 9:30 a.m.
Contact Hugh Fisher via the editorís desk at 704-797-4244.